Succession of Houssiere

HAWTHORNE, Justice

(dissenting).

In my opinion the judgment of this court reversing the decision of the district court and the Court of Appeal to remove the ad-ministratrix of this succession, Mrs. Marie Houssiere Van Geffen, for mismanagement works a grave injustice against those heirs seeking her removal in view of the serious matter that the record in this case discloses.

The first question presented to this court is whether under the facts and circumstances of this case the administratrix has mismanaged this succession. If the answer to this question is in the affirmative, there remains for consideration whether the trial judge abused his discretion in ordering her removal. Article 3182 of the Code of Civil *778Procedure gives to the court discretionary-power to remove the succession representative for the causes specified, one of these being mismanagement.

Mrs. Van Geffen provoked the administration of this succession solely for the purpose of imposing her will on six of the heirs in the matter of employing her sons to do the legal work necessary for the estate. The trial judge in his reasons for judgment observed: “If there is any possibility of there being an estate of this size which could be handled with a simple acceptance, rather than by an administration, this is the case.” The decedent’s estate was appraised at more than $250,000.00, which included over $60,000.00 in cash. She also left properties from which there is being received a monthly income of approximately $2000.-00. There were no debts other than funeral expenses and expenses incurred during the final week or two of her last illness. This was a simple succession which presented no problems of administration. It could have been handled without administration. The heirs had agreed that no administration would be necessary.

The evidence adduced in the lower court discloses that during the last illness of the deceased the heirs discussed among themselves whether an administration of the estate would be necessary, and concluded that no administration would be needed. One of the heirs testified that Mrs. Van Geffen herself stated that there was no necessity for the appointment of an administrator. The heirs, however, could not agree among themselves as to whom they would employ to do the legal work necessary. Mrs. Van Geffen wanted to employ her two sons, who practiced law in New Orleans. The others objected, desiring to employ local counsel, but Mrs. Van Geffen would not agree to this. A feeling of bitterness and hostility resulted. In order to prevent the employment of another attorney and to secure the succession fees for her sons she hurriedly obtained, without the knowledge and consent of the other heirs, the ex parte order now permitted in our procedure appointing her administratrix of the succession. Immediately after her appointment she employed her two sons as attorneys for the administratrix, without any agreement as to the amount of the fees they would charge for their services. She stated frankly that in the past she had helped and patronized the other heirs, and she thought it was her turn to be patronized.

It is Mrs. Van Geffen’s own testimony which proves that her interest was not to secure for the heirs their shares of the estate with the least expense possible, but was to assure that her sons would be employed to do the legal work necessary for the estate. She readily testified that she provoked this administration for the sole purpose of obtaining legal fees for her sons. Their interest was her interest. This *780interest clashes with her interest as an administratrix. Article 3191 of the Code of Civil Procedure provides: “A succession representative is a fiduciary with respect to the succession * * *. He shall act at all times as a prudent administrator.” When she appointed her sons she created a conflict of interest in my opinion, and made possible a situation where she would have the opportunity to promote their interest to the detriment of the succession.

It is not wise for an administrator to place himself in the equivocal position where his personal interest conflicts with his fiduciary duty. This situation is considered so serious as not to be tolerated in some jurisdictions. As stated in the case of In re Parker, 200 Cal. 132, 251 P. 907, 49 A.L.R. 1025, “The law, for wise reasons, forbids a person occupying a fiduciary relation to assume a position which might possibly be adverse to his duties. It is against public policy to permit such a person to be placed where he might be tempted to betray his trust * * *. ‘When one undertakes to deal with himself in different capacities — individual and representative — there is a manifest hostility in the position he occupies.’ ”

I recognize that the existence of a conflict of interest is not one of the causes for removal of a succession representative under our Article 3182, but where a conflict does exist, any act of the succession representative in the course of the administration showing that he is favoring the conflicting interest over the succession interest is mismanagement in my opinion, and ground for removal.1

In my opinion, when Mrs. Van Geffen created a conflict of interest by appointing her sons, at the very least she thereby increased her duty to make sure that these sons’ interests would not be favored over the interest of the succession in the matter of setting their fees. Instead of fulfilling this greater duty, the facts show that she has clearly abdicated her duty as a fiduciary in order to favor her sons over the succession she represents by approving for them highly excessive fees. When she sought an order to pay state inheritance taxes and federal estate taxes, she committed her first act in administration show*782ing that she was managing the estate so as to favor her sons over the succession, and this was an act of mismanagement. In the forms used for computing these taxes she declared that the fee she proposed to pay her attorneys was $25,000.00 — a fee manifestly excessive. The fee in the federal form was estimated only, but the adminis-tratrix under penalty of perjury declared that the tax return was true and correct, a complete return made in good faith. Mrs. Van Geffen testified under oath that she did not think the fee of $25,000.00 was reasonable, that she had told her sons to charge $50,000.00, and that as administratrix she would approve this latter sum for payment.

At the trial of this case the attorneys for the administratrix had every opportunity to deny that they would actually charge these highly excessive fees, but instead their questioning of witnesses showed that they were trying to uphold these charges as proper.

Here we are not dealing with mismanagement resulting from technical errors or honest errors of judgment; what the ad-ministratrix has done in this case is of a much more serious nature — it strikes at the foundation of her role as a fiduciary. The heirs were fully justified in complaining at her first act showing that she was favoring her sons’ interest over the succession, and their complaint here is not premature. In my opinion they ought not to be compelled to have the succession continue under an administratrix who revealed so clearly on the trial of this case that she was mismanaging the estate so as to assure her sons large fees rather than managing it with the least possible expense to the heirs.

Inasmuch as the opposing heirs did successfully show her mismanagement of the succession, the district judge then had discretion under Article 3182 of the Code of Civil Procedure to remove her, or not to remove her if he considered the stability of administration required her to remain notwithstandng her mismanagement. Clearly, in this case the only persons benefitting by this administration are the administratrix and her attorneys, and the stability of this administration did not require her continuance. The district judge did not abuse his discretion by removing her, therefore, and the Court- of Appeal judgment should have been affirmed.

. The majority opinion considers that no conflict of interest was created by the appointment of the sons of the administra-trix because it was the natural appointment to make. It is obvious that all conflicts of interest represent a natural state of things from the point of view of the succession representative. Under this reasoning all conflicts of interest would disappear. What is more natural than for one to promote one’s own interest? It is entirely natural for a succession representative to employ himself as counsel when he is also an attorney, but that practice has been thoroughly condemned in the strongest language by this court as a conflict of interest to the extent of allowing him no remuneration for such services. See Baldwin’s Executor v. Carleton, 15 Ea. 394; Succession of Key, 5 La.Ann. 567.